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Stars and Stripes: Ruling Could Derail Air
Force Doctor’s Argument for Refusing Anthrax Vaccine
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Ruling Could Derail Air Force Doctor’s Argument for Refusing Anthrax Vaccine
Mar 26, 2001
Dave Eberhart
Stars and Stripes Veterans Affairs Editor
Air Force Capt. John Buck, the first military doctor to receive a general court-martial for refusing the controversial anthrax vaccine, is scheduled to be arraigned April 18 at Keesler Air Force Base, Miss., on a charge of disobeying a lawful order.
Dr. Buck
Buck and his attorneys say they want to show that the order to
take the allegedly experimental and unsafe vaccine was unlawful.
But a recent decision by the U.S. Supreme Court could derail that
strategy.
On March 19, the high court denied the appeal of Marine Lance
Cpl. Matthew D. Perry, who in February was convicted at Camp Pendleton,
Calif., of the same offense with which Buck has been charged—violating
an order to take the six-shot series of anthrax inoculations.
In his appeal to the Supreme Court, Perry claimed that military
prosecutors violated his constitutional right to access to the
legal system and to a jury trial. Perry had challenged a court-martial
judge’s pre-trial ruling that the order requiring him to
take the anthrax shots was lawful.
The trial judge barred even a hint of a rebuttal of the legality of the order because she declared the order lawful and excluded any evidence to the contrary as a result.
· Buck’s defense team
“The trial judge barred even a hint of a rebuttal of the
legality of the order because she declared the order lawful and
excluded any evidence to the contrary as a result,” Perry’s
lawyers wrote in a brief to the high court.
Testimony Precluded
The trial judge’s ruling made it impossible for Perry’s
military jury to hear potentially volatile testimony about the
anthrax vaccine’s history of causing reactions in servicemembers
who have undergone the six-shot series.
Such testimony might have included the opinion of such experts
as Jeffery P. Kahn, Ph.D., M.P.H., director of the Center for
Bioethics at the University of Minnesota, who wrote last year:
“Usually, a vaccine isn’t allowed to be used by the
general public until the FDA has ruled that there is evidence
that it is both safe and that it works. Such evidence usually
comes from using the vaccine on people who are likely to be exposed
to the disease in question. In the case of anthrax the initial
tests and only real experience with exposed individuals come from
its use on farmers and veterinarians who are in close contact
with cattle—which are the reservoir of the form of the disease
that infects humans.
Should the vaccine be used without more testing?
· Jeffrey Kahn, Ph.D.
“But that doesn’t mean that the vaccine would work against
anthrax used as a weapon. With little data about its effectiveness,
but no other available protection for our soldiers, should the
vaccine be used without more testing?”
The Pentagon maintains that the vaccine is safe, although serious side effects occur about once per 200,000 doses. Severe allergic reactions occur less than once per 100,000 doses, the Pentagon says.
Perry was charged with disobeying his superior officer as well
as the Pentagon’s general order that all troops be vaccinated.
He claimed that the vaccine was unproven or experimental and that
he and other service members should have the right to refuse it.
Typically in such cases, a superior first counsels servicemembers
who refuse the vaccine. Continued refusal can be construed as
insubordination.
The Pentagon has ordered all 2.4 million active duty and reserve troops to undergo a six-shot anthrax vaccination regimen as protection against biological warfare. More than 400,000 have been vaccinated since the program began in 1998.
Anthrax is a naturally occurring virus that typically affects sheep and cattle. Dry anthrax spores, when inhaled, can be deadly to humans. The Pentagon has maintained that anthrax exposure is 99 percent lethal.
Facing a shortfall of the vaccine, the Pentagon scaled back
its vaccination program last summer and now requires it only for
troops going to the Persian Gulf region. The full program will
resume when more vaccine is available, Pentagon officials say.
Canadian Case
The Supreme Court ruling follows a similar case in Canada last
year when a Canadian military judge ruled that a former sergeant
did not have to take the anthrax vaccine.
In the spring of 1998, about 400 Canadian soldiers were vaccinated
against anthrax. The Canadian case started when Mike Kipling,
now retired, refused an anthrax vaccination while stationed in
Kuwait. Col. Guy Brais, the military judge, determined that the
lot of anthrax vaccine that Kipling had refused was “unsafe
and hazardous” and halted the court-martial last May. The
Canadian military is appealing the ruling.
In the Kipling case, an American medical expert testified that
many U.S. serviceman have suffered side effects from the anthrax
vaccine, including chronic fatigue, headaches, muscle and joint
pain and recurring rashes.
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Last revised: March 2004